GLOSSARY

Material contribution definition

Published by a LexisNexis PI & Clinical Negligence expert

What does Material contribution mean?

For material contribution to be proved, the breach need not be the sole, or even principal, cause of the damage, although it must have materially contributed to it.

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Asbestos—elements of a claim

Asbestos—elements of a claim Elements of the claim A claimant who has developed disease as a result of exposure to asbestos needs to prove: • a duty of care and/or a statutory duty on the part of the individual/company that exposed them to asbestos. The duty is to take reasonable care to ensure that a person was not exposed to a foreseeable risk of asbestos-related injury. In the case of Asmussen the claim was dismissed as on the prevailing standards and general knowledge regarding the dangers of exposure to asbestos of the time, it could not be said that the risk of injury ought to have been foreseen. See Practice Notes: Asbestos—the common law duty of care and Asbestos—statutory duty of care • a breach of the duty of care and/or the statutory duty (this will, in turn, involve issues as to whether it was reasonably foreseeable, at the time of the exposure to asbestos, that such exposure might lead to the development of disease and that the defendant failed to take all reasonably practicable steps to reduce the risk). Official guidance on asbestos levels such as HM Factory Inspectorate’s 1970 publication, Technical Data Note 13 may be a relevant consideration but is not a universal test of foreseeability. Thus, the case of Bussey can be seen as rejecting the notion that, even in claims which pre-dated publication of

Asbestos—causation in personal injury claims

Asbestos—causation in personal injury claims In order to recover damages a claimant in a personal injury claim must establish that the defendant caused or made a material contribution to the accident/contraction of disease. As will be seen below, there is an exception to this rule in one specific area. This issue is far from straightforward, from both a legal and a medical standpoint. The medical position From a medical standpoint, different considerations apply to the various types of disease that can be contracted by reason of exposure to asbestos. Some conditions are aggravated, or the effects increased, by further exposure to asbestos. Other conditions, once contracted, are wholly unaffected by continued exposure. Some conditions can be contracted by a single instance of exposure to asbestos (indeed by the inhalation of a single fibre of asbestos). The medical differences have led the courts to draw a distinction between what are referred to as divisible and non-divisible conditions. Different tests and rules apply to causation issues depending on whether the condition is classified as divisible or non-divisible. Returning to the medical analysis, the following is a useful, if somewhat simplistic, summary. Pleural plaques, asbestosis and pleural thickening (the divisible conditions) All of these conditions are cumulative in that they are likely to get worse as the total dose of inhaled asbestos increases. That is why they are all considered to be a powerful indicator of significant asbestos exposure. Mesothelioma

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Are there any specific guidelines or recommendations from any official body, which state explicitly that clinicians have a responsibility to put in place a safe and appropriate care pathway for patients, and that they remain responsible for the patient after discharge?

Are there any specific guidelines or recommendations from any official body, which state explicitly that clinicians have a responsibility to put in place a safe and appropriate care pathway for patients, and that they remain responsible for the patient after discharge? It is difficult to give any clear guidance as to what may or may not be relevant to any particular procedure or process in a clinical setting. The starting point is the standard framework for negligence when dealing with a patient's entitlement to medical care and support. There is a long established set of principles around breach of duty and

If A has negligently breached its duty of care to B for 20 years and then C, subsequently breaches that same duty of care (in place of A) for four months, during which subsequent period B suffers loss, is there any available defence to C in respect of the damage to B?

If A has negligently breached its duty of care to B for 20 years and then C, subsequently breaches that same duty of care (in place of A) for four months, during which subsequent period B suffers loss, is there any available defence to C in respect of the damage to B? Causation In most torts, where a defendant breaches its duty towards the claimant, they are only liable if the claimant can establish that the breach in question has resulted in some harm. Establishing factual causation requires the claimant to produce evidence that it is more likely than not that the defendant’s breach resulted in the damage complained of, also known as the ‘but for’ test. The starting point for a claimant in most cases is to prove in the affirmative that the claimant would have been unlikely to suffer loss ‘but for’ the defendant’s breach of duty. Ultimately, the claimant must prove two basic tenets on the balance of probabilities: • that the breach can cause the type of harm in question (factual causation) • that the claimant’s particular damage was caused in this way (legal causation) Where a claimant establishes that they have, in fact, suffered loss as a result of the defendant’s breach of duty, the court then must evaluate: • whether the tort is the effective cause of the eventual loss or whether there have been any

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PI & Clinical Negligence weekly highlights—14 October 2021

This week’s edition of PI & Clinical Negligence weekly highlights includes analysis of a Court of Appeal decision which found that a trial judge was entitled to reject the conclusions reached by an expert whose evidence was CPR 35 compliant, was not challenged by the evidence of any other witness and was not subject to any cross-examination. We also consider a High Court judgment which dismissed a claim for material contribution to a stroke. We have our usual round-up of other key cases and news as well as a webinar date for your diaries, recent Q&As and New Law Journal articles of interest.

Claim for material contribution to stroke dismissed (Thorley v Sandwell & West Birmingham NHS Trust)

PI & Clinical Negligence analysis: The claimant brought a negligence claim after he suffered a stroke following a coronary angiogram. The claimant suffered from atrial fibrillation and was taking daily warfarin, which had been stopped four days prior to the angiogram and not restarted for two days thereafter. The claimant alleged that the warfarin should not have been stopped for more than three days, and that the cessation caused or materially contributed to the occurrence of the stroke. The Trust admitted warfarin should have been restarted a day sooner, but did not otherwise admit breach, and denied causation in full. Mr Justice Soole held that the Trust was not in breach beyond the extent of its admission. He dismissed the claimant’s case on ‘but-for’ probability. He went on to hold that material contribution did not apply as there was only a single tortfeasor and the stroke was an indivisible injury. Written by David Juckes, barrister at Hailsham Chambers.

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